R v Bowerman
[2003] VSCA 30
•2 April 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 276 of 2002
| THE QUEEN |
| v. |
| ROBBIE JAMES BOWERMAN |
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JUDGES: | PHILLIPS, C.J., VINCENT, J.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 April 2003 | |
DATE OF JUDGMENT: | 2 April 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 30 | 2nd Revision - 22 June 2003 |
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Criminal law – Sentence – Affray and threat to kill a witness in the proceedings – Sentences of four months and two months respectively imposed – Accused having long criminal history including crimes of violence – Leave to abandon appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr D.A. Dann | Huggins McIntyre Solicitors |
PHILLIPS, C.J.:
It is apparent that by want of jurisdiction this matter has to be remitted by this Court for appropriate procedural steps to be taken for its proper review. Accordingly this Court has not heard the parties on the substantive issue (the appropriateness of the sentences imposed). As to the formal process hereafter, this Court shall make the necessary enabling orders. Before that is done, however, there are some observations I wish, speaking for myself, to make about the sentences imposed below.
The appellant, who is aged 32, pleaded guilty in the County Court at Wangaratta on 11 October 2002 to a presentment containing two counts. These were a count of affray (count 1) and a count of making a threat to kill (count 2). These offences, which carried maximum penalties of five years and ten years' imprisonment respectively, were committed at Wodonga on 12 and 15 October 2001. Upon making these pleas the appellant asked for some “summary offences” to be dealt with under s.359AA of the Crimes Act. He proceeded to plead guilty to informations laid by a police officer named Simon, of wilful damage, prejudicing security in cells and assaulting a police officer. These offences occurred on 11 June 2002 at Wodonga, and carried, respectively, maximum penalties of 25 penalty units or six months' imprisonment, ten penalty units and 25 penalty units or six months' imprisonment. He also pleaded guilty to a number of other informations charging, respectively, a threat to kill, an assault by kicking, an assault with a weapon, wilful damage, breach of an intervention order, driving while disqualified, driving an unregistered vehicle and exceeding the permissible alcohol level when driving a motor vehicle. These offences, which occurred on 12 August 2001 and in which a police officer Deegan was the informant, carried, respectively, maximum penalties of ten years' imprisonment (as the judge apparently believed), two years' imprisonment, two years' imprisonment, 25 penalty units or six months' imprisonment, two years' imprisonment, three months' imprisonment, three months' imprisonment and three months' imprisonment.
After hearing a plea for leniency, the learned judge on 18 October 2002 sentenced the appellant to be imprisoned for four months on count 1 of the presentment and two months on count 2 of the presentment. With respect to the informations laid by police officer Simon, his Honour imposed, on the charges of wilful damage and assaulting police, what he called “an aggregate term of imprisonment of one month” to be served concurrently with the sentence imposed on count 1 on the presentment. On the information for the offence of conduct prejudicial to cell security he was fined $200. With respect to the informations in which police officer Deegan was the informant, the appellant was fined $200 for the offence of driving an unregistered motor car and for all the other charges he was sentenced to what his Honour called “an aggregate sentence of imprisonment of six months”, which sentence was to be cumulative upon the sentence imposed on count 1. This made for, according to the learned judge, a “total effective sentence of 12 months' imprisonment”. His Honour added: “On the charge of exceeding prescribed alcohol limit, any licence to drive a motor car is cancelled and you are disqualified for a period of 18 months.” His Honour made a declaration of 127 days’ pre-sentence detention. I cannot see that the learned judge made any orders relevant to default in payment of the fines imposed. The “aggregate” sentences were presumably imposed pursuant to s.9 of the Sentencing Act. It is to be noted that the charge of making a threat to kill was laid, according to the information, under s.20 of Act 6231/1958, which, of course, is the Crimes Act 1958. Thus, this was an information for an indictable offence.
The appellant admitted at the plea hearing 98 previous convictions from 22 court appearances between November 1990 and 9 July 2001. Some nine of these were for crimes of violence and other street offences; four were for the offence of driving with a blood alcohol reading exceeding .05 percent.
The appellant later lodged notice of application for leave to appeal against sentence pleading (with amendment) some seven grounds which, in the circumstances, it is unnecessary to recite, except to note that this notice was restricted to sentence and ground 7 complained of error in his Honour in the exercise of his powers under s.359AA when:
“(a)he imposed a sentence in reference to the indictable offence of a threat to kill and
(b)he regarded the applicable maximum penalty for that offence of threat to kill as one of ten years' imprisonment.”
Ground 8 complained of error in the imposition of the aggregate sentence in the circumstances where the maximum penalty for relevant offences was three months' imprisonment.
The appellant has now abandoned his application touching the two indictable counts, but in my view it is necessary to say something about the sentences imposed.
I turn first to the facts of count 1.
On 12 October 2001 at about 10 a.m., Bowerman attended at a house situated at 66 McFarland Road, Wodonga, which was occupied by one Jodie Thompson, who is the de facto wife of Gregory Such. Bowerman had an argument with Thompson over $33 that was owed to Bowerman’s de facto wife, Danielle Jenkins, for aromatherapy products.
Bowerman left this address and returned to his home at 1/6 Quirk Court, Wodonga. Thompson and Such walked to the Birralee Complex at about 11 a.m. so Thompson could obtain her methadone. As they were walking along Melrose Drive, Danielle Jenkins drove past in her vehicle. Jenkins, Thompson and Such then became involved in a verbal argument in the street. Jenkins left after this confrontation to collect Bowerman and re-attend at the Birralee Complex.
Shortly after 11 a.m. Jenkins and Bowerman drove through the Birralee McDonald’s and into the car park of the Birralee Hotel between Melrose Drive and the hotel. Just prior to this Thompson had gone into the hotel with one of her children while Such waited at the front of the hotel near the main entrance foyer. Bowerman got out of the vehicle (driven by Jenkins), having taken off his shirt, and ran toward Such. Both males then began to fight each other outside the front doors of the hotel.
During this stage of the fight Such held a small sharp object, possibly a small pocket knife or a set of nail scissors, to Bowerman’s throat. They both fought through the front doors into the foyer of the hotel. They continued to fight by punching each other. While Such was punching Bowerman he still had the sharp instrument in his hand. This caused numerous stab wounds to the abdomen and chest area of Bowerman’s body. Both Bowerman and Such exchanged punches during this incident until staff members from the Birralee Tavern intervened. As these staff members separated the two fighting males, Jenkins rushed into the foyer armed with a steak knife that she had retrieved from her vehicle. She then ran from the foyer into a bar known as Bobbies Bar which is situated off the foyer. She had the “knife held out in front of her” and said to a female staff member in the bar, “It’s all right, I’ve got a knife.”
Bowerman and Such continued to fight in the foyer and, as staff members separated them, Jenkins entered the foyer with the knife and told one of the staff members to let Bowerman go. The staff members released Such and Bowerman and Such ran from the foyer of the hotel towards the McDonald’s restaurant situated next door. Bowerman, who was bleeding from the wounds he had received, ran out of the hotel after Such, with Jenkins following shortly after, still armed with the steak knife.
Such ran into the restaurant and around the service area and then in behind the counter where McDonald’s staff were preparing meals. He was followed into the kitchen area by Jenkins, who still had the knife in her hand. Both were in the back corner of the kitchen and Jenkins was trying to stab Such. He picked up a metal basket and used it to fend her off. As this was happening, staff members from McDonald’s (young females) left the kitchen area by climbing over the counter. These people were in tears and terrified that they may get hurt during this part of the affray.
As they fought, Such grabbed hold of Jenkins and held her in a bear hug from behind and then he pushed her away. A staff member of McDonald’s then got between Such and Jenkins and prevented them from fighting. Bowerman, however, had now entered the kitchen area, and he began to fight with Such. Such ended up on the ground with Bowerman gouging at his eyes. Bowerman then got up off Such and sought to leave the restaurant. As he did this Jenkins walked over to Such and kicked him twice in the head.
Bowerman and Jenkins returned to their vehicle and drove from the Birralee Complex to their home at Quirk Court. Bowerman was treated by an ambulance officer at this address and conveyed to the Albury Base Hospital for the further treatment of his stab wounds. Jenkins was arrested by police and conveyed to the Wodonga police station.
The knife brandished by Jenkins was recovered from her vehicle at 6 Quirk Court, Wodonga, along with bloodstained clothing belonging to Bowerman. Bowerman described the instrument used to inflict his wounds as a small pocket knife. Such has stated through a statement provided through his solicitor that he had armed himself with a pair of nail scissors and these were used to stab Bowerman. Police conducted a thorough search of the crime scene and the instrument used by Such was not located.
The Birralee Complex comprising the Birralee Tavern and McDonald’s Family Restaurant is a very busy location in the Wodonga area. It is visited by a large number of persons at any time of the day, particularly in the hours leading up to lunch time. At the time of the affray there were numerous staff members at the Birralee Tavern. The actions of all the offenders caused these persons to be very frightened and upset. Staff members intervened placing their own safety at risk in an attempt to stop the fighting. The offenders continued to fight even after this intervention, and then proceeded to the McDonald’s Family Restaurant. Staff members at the restaurant consist of young males and females and the behaviour by the offenders in this restaurant also caused these people to be very frightened and upset. Staff members and customers with young children ran from the restaurant hysterical and in tears. Again staff members of this restaurant were placed in a dangerous and frightening situation by the actions of the offenders. Some of these staff members also attempted to intervene during the affray in an effort to prevent further escalation of the fighting.
The above account relates to the count of affray (count 1) and reveals a very serious offence of this sort, started by the appellant and resumed by him after Such ran away.
On 15 October 2001 Bowerman attended at Jodie Thompson’s home in McFarland Road. At this address he was abusive and physically threatening to her. Bowerman threatened to kill her. Bowerman was aware that she was a witness in the affray matter at the time he attended at her address and threatened her and the potential for interference with the due course of justice is manifest.
I am conscious that, in the unusual procedural circumstances which here obtain, the parties have had no locus to make submissions to this Court. Having regard to those facts that I have recited in the fullest detail, and the prior criminal record of the appellant, I am obliged to say that, after giving full weight to matters personal to the appellant, the sentences imposed on counts 1 and 2 appear on their face, in my opinion, and with great respect to his Honour, to be inadequate. However, as I have earlier mentioned, the Court has not had the benefit of any argument on this question and no concluded view can accordingly be expressed.
Disposition of the Appeal
I now return to the formal disposition of this matter in respect of which the other judges of the Court and I are in agreement.
Leave to abandon the appeal, so far as it relates to the sentences for the counts on the presentment, has been granted. This Court has been asked to quash the sentence on the summary matters. It is common ground that the judge had no jurisdiction to deal with the information for the threat to kill laid by police officer Deegan, but, because of his Honour’s resort to aggregate sentencing, this Court cannot determine what sentence he purported to impose upon it. We have noted the stated intention of the Crown to institute proceedings for judicial review, and in those circumstances the Court will make no further orders.
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